Applicability of the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank

Applicability of the Federal Vacancies Reform Act to Vacancies

at the International Monetary Fund and the World Bank

T he U n ited Slates E xecutive D irector and th e A lternate U nited States E xecutive D irector at the Inter­

national M onetary F und and the World B ank are not part o f an E xecutive agency, and therefore

vacancies in those offices are not covered by the Federal V acancies Reform Act.

May 11, 2000

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l

D epa r tm en t o f th e T r ea su r y

You have requested our opinion whether the Federal Vacancies Reform Act

(“ Vacancies Reform Act” or “ Act” ), 5 U.S.C. §§3341-3349d (Supp. IV 1998),

applies to vacancies in the offices of the United States Executive Director

(“ USED” ) and the Alternate United States Executive Director ( “ Alternate

USED” ) at the International Monetary Fund (“ IM F” ).1 This memorandum con­

firms our oral advice that the Act does not apply to these offices. By its terms,

the Act applies only to a Senate-confirmed office “ of an Executive agency.” We

believe that the better view, based on the information provided by the Treasury

Department, is that the U.S. representatives are not part of an “ Executive agency”

and are therefore not covered by the Act.

After our oral advice about the U.S. representatives to the IMF, you asked for

our opinion whether the Vacancies Reform Act applies to vacancies in the offices

of the United States Executive Director and the Alternate United States Executive

Director at the International Bank for Reconstruction and Development ( “ World

Bank” ). The Treasury Department has informed us that the USEDs and Alternate

USEDs at the IMF and the World Bank are similar with regard to the relevant

facts discussed in this opinion. On that basis, we conclude that the USED and

Alternate USED at the World Bank are similarly outside the scope of the Vacan­

cies Reform Act because they are not part of an “ Executive agency.”

I. The United States Representatives to the IMF

A. The United States Executive D irector and Alternate United States Executive

D irector

The IMF was established under an agreement negotiated at the 1944 Bretton

Woods Conference. See IMF, What is the International Monetary Fund?, available

at http://www.imf.org/extemal/pubs/ft/exrp/what.htm (visited Mar. 29, 2000)

(“ IM F Website Summary” ). The United States agreed to join the IMF in 1945

1 In this memorandum, the USED and the Alternate USED at the IMF are referred to jointly as the “ U.S. represent­

atives to the IM F” or, simply, the “ U.S representatives.”

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Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund

and the World Bank

under the authority of the Bretton Woods Agreements Act. See 22 U.S.C. §286

(1994). An international organization currently made up of 182 member countries,

the IMF promotes international monetary cooperation, facilitates the expansion

and balanced growth of international trade, and promotes exchange stability. See

IMF Website Summary; Articles of Agreement of the International Monetary

Fund, art. I, available at http://www.imf.org/extemal/pubs/ft/aa (visited Mar. 29,

2000) (“ Articles of Agreement” ).

The authority of the IMF is vested in a Board of Governors, consisting of a

Governor and an alternate Governor from each member country. See Articles of

Agreement, art. XII, §2; IMF Website Summary. The Board of Governors has

delegated substantial authority to the IMF’s Executive Board, and it is the Execu­

tive Board that carries out the IMF’s day-to-day operations and makes most of

its decisions. See Articles of Agreement, art. XII, §§2 & 3; By-Laws, Rules, and

Regulations of the International Monetary Fund, § 15, available at http://

www.imf.org/extemal/pubs/ft/bl (visited Mar. 29, 2000); William N. Gianaris,

Weighted Voting in the International Monetary Fund and the World Bank, 14

Fordham Int’l L.J. 910, 913-14 (1990/1991). The Executive Board is made up

of 24 Executive Directors, with a Managing Director serving as chairperson. Arti­

cles of Agreement, art. XII, § 3(b). Eight of these Executive Directors represent

individual member countries, including the United States, and each of these eight

Executive Directors is appointed by the country that he or she represents. The

remaining sixteen are elected by the Governors and represent groupings of the

remaining member countries. See id. Sched. E; IMF Website Summary.

The Executive Director and the Alternate Executive Director for the United

States are appointed by the President, by and with the advice and consent of the

Senate, to two-year terms, with the right to hold over in office until a successor

has been appointed. 22 U.S.C. §286a(a), (b) (1994). The USED and Alternate

USED serve as representatives of the United States and present this Government’s

views at the IMF. See IMF Website Summary; Letter for David R. Brennan,

Deputy General Counsel, Department of the Treasury, from Margery Waxman,

General Counsel, Office of Personnel Management, Re: Whether the U.S. A lter­

nate Executive D irector o f IMF is Within the Executive Branch fo r the Purpose

o f Qualifying fo r SES Benefits under 5 U.S.C. § 3392(c), at 4 (Nov. 4, 1980)

( “ OPM Opinion” ) (“ [T]hese positions are designed to serve the President in the

exercise of his Executive branch functions concerning the implementation of for­

eign policy.” ). The Secretary of the Treasury (“ Secretary” ) has principal respon­

sibility for instructing the U.S. representatives to the IMF on the positions and

votes of the United States. See, e.g., Exec. Order No. 11269, at §3(a), reprinted

as amended in 22 U.S.C. §286b note (1994); 22 U.S.C. §§262h, 262k(b), 262m -

2(b), 286a(d)(3); 286e-8; 286e-13 (1994).

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Opinions o f the Office o f Legal Counsel m Volume 24

B. The Federal Vacancies Reform A ct

Except for those offices expressly exempted by 5 U.S.C. § 3349c, the Vacancies

Reform Act applies to any vacancy in an office of an “ Executive agency” to

which appointment is required to be made by the President, with the advice and

consent of the Senate.2 The USED and the Alternate USED are both appointed

by the President, with the Senate’s advice and consent, 22 U.S.C. §286a(a), (b),

and neither office is expressly excluded from coverage by 5 U.S.C. § 3349c.

Accordingly, the critical issue in determining whether the Vacancies Reform Act

applies to the USED and the Alternate USED is whether they are officers “ of

an Executive agency’ ’ within the Act.

The use of the phrase “ of an Executive agency” imposes a meaningful limita­

tion on the scope of the Act. “ Executive agency” is a specific, defined term

in title 5, and is narrower than the executive branch as a whole. See Haddon

v. W alters, 43 F.3d 1488 (D.C. Cir. 1995). The Vacancies Reform Act incorporates

the title 5 definition of an “ Executive agency,” except that the Act adds the

Executive Office of the President to the definition and excludes the General

Accounting Office. See 5 U.S.C. § 3345(a); see also S. Rep. No. 105-250, at 12

(1998) (“ ‘Executive agency’ is defined at 5 U.S.C. § 105.” ); Guidance on

Application o f Federal Vacancies Reform A ct o f 1998, 23 Op. O.L.C. 60, 61-

62 (1999). By its plain language, therefore, the Act does not necessarily reach

all Senate-confirmed offices, but only those in “ an Executive agency.”

To be sure, at least one statement in the legislative history of the Act could

support the proposition that Congress intended to cover all Senate-confirmed

offices in the executive branch, except for those offices expressly excluded by

§ 3349c:

Section 3345 states that the provisions of the Act will apply to any

officer in any executive agency, other than the General Accounting

Office, if that officer’s appointment is made by the President, sub­

ject to the advice and consent of the Senate. Unlike current law,

this change w ill make clea r that the Vacancies Act, as amended

by this legislation, applies to all executive branch officers whose

appointm ent requires Senate confirmation, except fo r those officers

described in Section 3349c.

144 Cong. Rec. S12,824 (daily ed. Oct. 21, 1998) (statement of Sen. Byrd)

(emphasis added). Nevertheless, this remark in a floor statement, which does not

even specifically address the possibility that a Senate-confirmed office in the

2 The Vacancies Reform A ct is not necessarily the only method, however, of filling such offices on a temporary

basis. The Act also expressly preserves o th er statutory authorities that designate a specific officer to serve as the

acting officer for a vacant office or that authorize the President, a court, or the head of an Executive department

to designate an acting officer 5 U.S.C § 3347(a)(1).

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Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund

and the World Bank

Executive branch might be outside any “ Executive agency,” cannot overcome

the plain language defining the reach of the Act.

Section 105 defines an “ Executive agency” as “ an Executive department, a

Government corporation, and an independent establishment.” 5 U.S.C. § 105

(1994). These three terms are defined in §§ 101, 103, and 104 of title 5. Neither

the IMF nor the office of the U.S. representatives to the IMF is a “ Government

corporation.” Accordingly, whether the USED and the Alternate USED are offi­

cers of an Executive agency turns on whether they are in either (i) an Executive

department or (ii) an independent establishment.

C. Are the United States Executive D irector and Alternate United States Executive

D irector Part o f the Department o f the Treasury?

Because the Department of the Treasury is an Executive department, see 5

U.S.C. § 101, an officer in the Department of the Treasury is an officer of an

Executive agency within the Act. Cf. Memorandum for Files, from Daniel L.

Koffsky, Acting Deputy Assistant Attorney General, Office of Legal Counsel, Re:

Permanent Representative to the United Nations (July 14, 1998) (“ 1998 UN

Memo” ) (concluding that the United States Permanent Representative to the

United Nations is in the State Department and therefore an officer of an Executive

agency). The information provided to us by the Treasury Department indicates

that the Treasury Department has a more direct and substantial relationship with

the U.S. representatives to the IMF than does any other Executive department.

If the U.S. representatives are within any Executive department, that department

would be the Treasury Department.

Although the issue is not entirely free from doubt, we conclude that, on balance,

the better view is that the USED and the Alternate USED are not in the Depart­

ment of the Treasury. In an Appendix, we set out the factors relevant to the anal­

ysis. Some of these factors strongly indicate that the U.S. representatives are not

part of the Treasury Department. Although others might suggest that the U.S.

representatives are in the Treasury Department, a closer examination reveals that

the relationship of the U.S. representatives to the Treasury Department is quite

limited in scope and frequently ambiguous even within that limited area.

For some of the most central elements of personnel administration, the U.S.

representatives are unconnected to the Department o f the Treasury. The Treasury

Department is not responsible for setting or paying the salaries of the U.S. rep­

resentatives. See 22 U.S.C. §286a(d). Nor does the Treasury Department carry

the U.S. representatives on its employment rolls. Furthermore, the staff for the

U.S. representatives are not Treasury Department employees, but instead are

employees of the IMF; and if they come to the IMF from the Treasury Depart­

ment, they are officially separated from the Treasury Department, removed from

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Opinions o f the Office o f Legal Counsel in Volume 24

the Treasury Department’s employment rolls, and transferred to the employment

of the IM F.3

The Vacancies Reform Act appears in Title 5 and uses Title 5’s definition of

“ Executive agency.” Title 5 largely deals with personnel matters. If, for these

essential aspects of personnel administration, the U.S. representatives have no

connection to the Treasury Department, the compelling implication is that the U.S.

representatives are not located in the Treasury Department.

The strongest factor potentially arguing in favor of the view that the U.S. rep­

resentatives to the IMF are part o f the Treasury Department is that they receive

their instructions through the Secretary of the Treasury. See, e.g., Exec. Order

No. 11269, at §3(a), reprinted in 22 U.S.C. §286b note (delegating to the Sec­

retary the President’s authority to instruct United States representatives to the

international financial organizations). This factor alone, however, does not mean

that the U.S. representatives to the IMF are part of the Treasury Department. By

statute, the power to instruct is vested in the President, not the Secretary of

Treasury. As a practical matter, the President cannot personally perform all of

the duties for which he is ultimately responsible, and here he has chosen to dele­

gate the task of conveying the Government’s instructions. That the President has

determined that the Secretary of Treasury is best suited to be principally respon­

sible for providing the instructions to the U.S. representatives cannot, as a legal

matter, make the U.S. representatives part of the Treasury Department.

Moreover, the history by which the Secretary became responsible for instructing

the U.S. representatives to the IM F is consistent with the view that they are not

part of the Treasury Department. Originally, in the Bretton Woods Agreements

Act of 1945, Congress made the National Advisory Council on International

Monetary and Financial Problems responsible for instructing the U.S. representa­

tives, under the general direction of the President. 22 U.S.C. § 286b(b)(4). In 1965,

President Johnson abolished the Council and transferred to himself all of its func­

tions, including the responsibility for instructing the U.S. representatives to the

IMF. Reorg. Plan No. 4 of 1965, at §§ 1(b) & 3(a), reprinted in 5 U.S.C. app.

at 1519 (1994). In a 1966 Executive Order, the President delegated to the Sec­

retary of Treasury the authority to instruct the representatives. Exec. Order No.

11269, at §3(a), reprinted in 22 U.S.C. §286b note. It thus seems quite unlikely

that the U.S. representatives would originally have been considered within the

Department of the Treasury; and nothing in the later history of the President’s

delegation to the Secretary o f his authority to instruct the U.S. representatives

indicates that, in addition to delegating the authority to instruct, the President

3 On rare occasions, additional Treasury employees, beyond the usual staff of the U.S. representatives, may be

detailed to the IMF. U nder such details, the individual would remain a Treasury employee Such details may be,

and are, also made to a range of international organizations under the same authonty and conditions as they are

m ade to the IMF. As details o f Treasury employees to the UN Secretariat would not suggest that the UN Secretariat

is part o f the Treasury Department, details to the IMF also do not suggest that the U.S. representatives are part

o f the Treasury Department

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Applicability o f the Federal Vacancies Reform Act to Vacancies at the International M onetary Fund

and the World Bank

intended to transfer the legal, administrative location of the U.S. representatives

to the Treasury Department. Nor does Congress’s passage, after the Executive

Order, of statutes directing or authorizing the Secretary to instruct the U.S. rep­

resentatives as to certain specific issues, see, e.g., 22 U.S.C. §§262h, 262k(b),

262m-2(b), 286a(d)(3), 286e-8, 286e-13, show any intent to alter the administra­

tive location of the U.S. representatives. These statutes appear to reflect the reality

of the delegation made by the Executive Order, rather than any unstated intent

to move the U.S. representatives into the Treasury Department.

The Treasury Department has some responsibility for the bookkeeping and

agency contributions associated with the U.S. representatives’s receipt of certain

employment benefits, see 22 U.S.C. §276c-2 (Supp. IV 1998), but the provision

assigning this task ultimately serves to demonstrate that the U.S. representatives

are not otherwise part of the Treasury Department. Under §276c-2, “ [t]he

Treasury Department shall serve as the employing office” in administering the

employment benefits. If the U.S. representatives were already part of the Treasury

Department, there would be no need for the statute to specifically denominate

Treasury as the employing office, because it would already be the employing

office as a result of the administrative location of the U.S. representatives.4

Finally, although the Treasury Department gives ethics advice to the U.S. rep­

resentatives, we have been informed that it does not do so as a result of any

determination that it is legally required to take this role. Furthermore, the Secretary

of Treasury, we understand, probably has never been asked to grant the U.S. rep­

resentatives a waiver under the authority of 18 U.S.C. § 208 (1994), as delegated

by the President to agency heads with respect to Presidential appointees in their

agencies, see Exec. Order No. 12731, §401, 3 C.F.R. 306 (1991).

As these factors show, the determination whether the U.S. representatives are

part of the Treasury Department requires fact-specific analysis, and the limited

situations in which this Office has previously addressed whether an officer or

entity is part of an Executive department do not present perfect analogies. Never­

theless, we believe that our prior advice in those cases is consistent with the

conclusion here that the U.S. representatives are not part of the Treasury Depart­

ment.

We have twice before considered the somewhat analogous question of whether

the United States Mission to the United Nations ( “ Mission” ) is in the Department

4 It could also be argued, more generally, that no separate provision would be needed to provide these benefits,

which are available generally to members of the civil service within the Treasury Department, if the U.S. representa­

tives were already employed there. Further, §27 6 c-2 places “ in the discretion of the Secretary of the Treasury”

the decision whether to provide these benefits to the U.S. representatives It would arguably be anomalous for Con­

gress to vest the Secretary with such discretion regarding the benefits of U.S. representatives if they were part

of Treasury, since that discretion does not exist as to other employees and officers of the Treasury Department

While we tend to think that this is further evidence that the U.S representatives are not within the Treasury Depart­

ment, we also recognize that there is a counter argument to this line o f reasoning — namely, that an express grant

of benefits was necessary to overcome the prohibition in 22 U S C §286a(d)(l) on any person’s receiving “ any

salary or other compensation from the United States” for serving as an Executive Director or Alternate at the IMF

or World Bank. As a result, we do not place any reliance on this argument in concluding that the U.S representatives

are not part o f the Treasury Department.

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Opinions o f the Office o f Legal Counsel in Volume 24

of State. In the first of these matters, the status o f the Mission determined both

whether a vacancy in a Senate-confirmed position in the Mission could be filled

under the old Vacancies Act and whether a Senate-confirmed officer, also in the

Mission, could be the officer designated by the President to fill that vacancy.

See Memorandum for Files, from Daniel L. Koffsky, Special Counsel, Office of

Legal Counsel, Re: Vacancy at United States M ission to the United Nations at

1 (Apr. 8, 1996) ( “ 1996 UN Memo” ). In the second of these matters, we re­

affirmed our conclusion that the Mission was in the State Department and con­

cluded that therefore the United States Permanent Representative to the United

Nations could be detailed under the unamended Vacancies Act to fill a vacancy

in the Department of Energy. See 1998 UN Memo at 1. Although a significant

factor in the Office’s conclusion that the Mission is in the State Department was

that instructions for the Permanent Representative were sent through the Secretary

of State, there the Secretary’s power to give instructions was statutory, and in

any event that power was not the sole or determinative factor. See 1996 UN Memo

at 1-2; 1998 UN Memo at 2. To the contrary, the conclusion was premised on

a significant number of additional factors demonstrating the Mission’s administra­

tive location within the State Department. We noted, among other factors, that

the State Department exercises fiscal control over the Mission through control

of the M ission’s appropriations; the Permanent Representative is carried on the

State Department’s employment rolls; there is a “ home desk” for the Mission

within the State Department; the administrative officers within the State Depart­

ment treat the Permanent Representative as an official of the Department; the State

Department handles the FOIA, whistleblower, and ethics work for the Mission;

and the Inspector General for the State Department exercises jurisdiction over the

Mission. See 1996 UN Memo at 2; 1998 UN Memo at 2. As demonstrated above

and in the information in the Appendix, these factors are generally not present

with regard to the U.S. representatives. Moreover, unlike the situation with the

U.S. representatives and Treasury, there were no significant factors indicating that

the Mission was not part of the State Department.5 See also, e.g., Memorandum

for Ginger Lew, General Counsel, Department of Commerce, from Dawn Johnsen,

Deputy Assistant Attorney General, Office of Legal Counsel, Re: ADEA and

Regional Fishery Management Councils at 4 & n.l (Mar. 14, 1995) (“ Regional

Fishery Management Councils O pin.” ); Memorandum for Frank K. Richardson,

Solicitor, Department of the Interior, et al., from Larry L. Simms, Deputy Assist­

ant Attorney General, Office of Legal Counsel, Re: Status o f the Navajo and Hopi

5 The only potentially contrary factor identified was an inconsistency among State Department wire diagrams;

som e clearly identified the Permanent Representative as part o f the State Department, whereas other wire diagrams

appeared to suggest that the Mission had a relationship to State more akin to an independent agency. 1998 UN

M em o at 2 n 1. The Treasury organizational charts and wire diagrams, in contrast, are consistent in not including

the U.S representatives as part o f the Treasury Department

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Applicability o f the Federal Vacancies Reform Act to Vacancies at the International M onetary Fund

and the World Bank

Indian Relocation Commission and Removability o f its Commissioners at 10-11

(Jan. 17, 1985).6

D. Do the United States Representatives to the IMF Constitute an Independent

Establishment?

Because the U.S. representatives to the IMF are neither in a Government cor­

poration nor part of an executive department, they are part of an Executive agency

only if they are an independent establishment. Section 104 defines an independent

establishment as follows: “ For the purpose of this title, ‘independent establish­

ment’ means — (1) an establishment in the executive branch (other than the United

States Postal Service or the Postal Rate Commission) which is not an Executive

department, military department, Government corporation, or part thereof, or part

of an independent establishment; and (2) the General Accounting Office.” 5

U.S.C. § 104. While this definition is quite broad, its plain language requires that

a collection of offices meet three requirements in order to constitute an inde­

pendent establishment: (1) it must be an “ establishment” ; (2) it must be “ in the

executive branch” ; and (3) it must not be a part of an Executive department,

military department, Government corporation, or another independent establish­

ment. The U.S. representatives to the IMF can satisfy the third requirement, but

not the first two. Accordingly, we conclude that they are not an independent

establishment within the meaning of § 104.

To the extent that the U.S. representatives are an indivisible part of the IMF,

they would only be part of an independent establishment if the IMF is itself an

independent establishment. The IMF, however, is not within the executive branch.

It is instead an international institution made up of representatives from over 180

member countries. See OPM Opin. at 3 (“ IMF clearly is not within the Executive

Branch” ). As a result, IMF as a whole cannot constitute an independent establish­

ment.

Further, while the U.S. representatives may be officers in the executive branch,

see OPM Opin., their “ office” at IMF does not constitute an “ establishment.”

The term “ establishment” embodies the idea of a free-standing entity with its

own structure and unity. For example, one dictionary defines “ establishment,”

in relevant part, as follows:

c: a permanent civil or military force or organization; d: a more

or less fixed and usu. sizable place of business or residence together

with all the things that are an essential part of it (as grounds, fur­

6 Nor is our conclusion here inconsistent with O PM ’s conclusion that the Alternate USED is within the executive

branch for the purpose of qualifying for SES benefits OPM Opin at 3-5. The question whether a position is within

the executive branch is different from whether it is within the Treasury Department or whether the U.S representa­

tives constitute an independent establishment. Moreover, OPM, in discussing persons who went from Treasury to

be the Alternate USEDs, states that, although they never left the executive branch, they left the Treasury Department.

Id. at 4-5.

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Opinions o f the Office o f Legal Counsel in Volume 24

niture, fixtures, retinue, employees); e: a public or private institution

(as a school or hospital)

W ebster’s Third New International Dictionary of the English Language,

Unabridged 778 (1993). The office of the U.S. representatives is not of this char­

acter. It is not in any sense an independent, free-standing establishment. It is

instead a component part of the IMF. The office is fully funded by the IMF,

with the IMF setting and paying the compensation of the U.S. representatives

and their staff, as well as the office’s operating expenses. The office, moreover,

with the exception of the U.S. representatives, is staffed by employees of the

IMF who owe their principal obligations to the IMF, rather than the federal

government. See By Laws of the IMF, Rule N -3 (employees of the IMF, in con­

trast to representatives of the member nations, owe their exclusive loyalty to the

IMF); OPM Opin. at 4 ( “ [W]e would make the distinction between [U.S. rep­

resentatives] and United States employees who transfer to international organiza­

tions to serve the organizations in their area of expertise without any direct

accountability to the United States.” ).

Beyond the language of the statute, there is little relevant guidance in OLC

opinions, case law, or the legislative history o f § 104. On a few occasions, we

have considered whether an entity is an independent establishment. These matters,

however, generally involved situations in which it was clear that the entity was

an establishment and was in the executive branch; the only question was whether

it was independent or a part of an Executive department. For example, we con­

cluded that the Commission on Fine Arts is an independent establishment because

it is a congressionally created, free-standing entity entirely financed by the federal

government. Memorandum for Charles H. Atherton, Secretary, Commission of

Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: A pplication of Executive O rder 11988, entitled “ Floodplain

Management, ” to the Commission o f Fine A rts at 2-3 (Nov. 14, 1980); see also,

e.g., Memorandum for Edward A. Frankie, General Counsel, NASA, from J.

M ichael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: D epart­

ment o f Transportation Licensing Under the Commercial Space Launch A ct at

16 (Nov. 15, 1990) (concluding NASA is an independent establishment because

it has a presidentially appointed head who is responsible for exercise of all powers

o f NASA under only the supervision and direction of the President); Regional

Fishery Management Councils Opin. at 4 & n .l (the Councils are part of Com­

merce because their primary purpose is to advise the Secretary, the majority of

voting members are appointed by the Secretary, the Secretary controls what

administrative staff Councils may have and the procedures the Councils follow,

and Commerce pays the compensation and expenses of the Councils and their

staffs).

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Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund

and the World Bank

With regard to the definition of “ executive agency” set out in 40 U.S.C.

§ 472(a) (1994), which we compared to the “ nearly identical language in the defi­

nition of ‘executive agency’ in title 5 ’s general provision (5 U.S.C. § 105),” we

noted that certain less substantial and well delineated entities within the Executive

Office of the President might not constitute independent establishments. Memo­

randum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky,

Acting Assistant Attorney General, Re: Use o f GSA Authority to Accept Gift o f

Equipment at 5 -6 (Aug. 3, 1993). In particular, we concluded that while the

Executive Office of the President and some of its principal components, such as

the Office of Management and Budget, appear to fall within the ordinary meaning

of an independent establishment, “ [i]t is much less certain whether more ad hoc

and less formal entities under the [Executive Office of the President] would meet

this definition.” Id. at 5; see also H adden , 43 F.3d at 1489-90 (staff of the Execu­

tive Residence are not employees within an Executive agency).7

E. Conclusion

We recognize that Congress may not have had any specific intent to exclude

these offices from the scope of the Vacancies Reform Act. By its terms, however,

the Vacancies Reform Act applies only to vacancies in Senate confirmed offices

that are part of an “ Executive agency.” While this defined term is quite broad

and includes almost all Senate confirmed, executive branch offices, its use in the

Act has the consequence that, to be covered by the Act, an office must be not

just an office in the executive branch, but an office in an Executive department,

Government corporation, or independent establishment. Because the U.S. rep­

resentatives to the IMF are not part of an Executive department, Government cor­

poration, or independent establishment, vacancies in those offices are not covered

by the Vacancies Reform Act. We stress, however, that the category of executive

branch offices that are not part of an Executive agency is extremely narrow. In

fact, that category may well be limited to a set of offices within international

financial institutions that are similarly situated to the United States Executive

Director and Alternate United States Executive Director at the IMF.

II. The United States Representatives to the World Bank

The Department o f the Treasury has informed us that the United States Execu­

tive Director and the Alternate United States Executive Director at the World Bank

are similarly situated to the USED and Alternate USED at the IMF with regard

to the factors relevant to our determination that the USED and Alternate USED

7 Section 104 of title 5 was added as a new provision to the United States Code as part of the codification of

title 5. See Pub L. No 89-554, 80 Stat. 378, 379 (1966). The revision notes on § 104 contained in the House

and Senate reports are brief and do not shed light on the issue considered in this memorandum See H.R. Rep.

No. 89-901, at 6 (1965), S Rep No 89-1380, at 22-23 (1966).

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Opinions of the Office o f Legal Counsel in Volume 24

at the IMF are not covered by the Vacancies Reform Act. Accordingly, for the

reasons discussed in part I of this memorandum, vacancies in the offices of the

United States Executive Director and the Alternate United States Executive

Director at the World Bank also are outside the coverage of the Vacancies Reform

Act.

Conclusion

Because the United States Executive Directors and the Alternate United States

Executive Directors at the IMF and the World Bank are not part of an ‘‘Executive

agency,” vacancies in those offices are not covered by the Vacancies Reform

Act.

DANIEL L. KOFFSKY

Acting Deputy Assistant Attorney General

Office o f Legal Counsel

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Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund

and the World Bank

APPENDIX

Our conclusion is based on the following information about the U.S. representa­

tives to the IMF and their relationship with the Treasury Department:8

* The U.S. representatives receive instructions on voting and

policy matters from the Secretary of the Treasury. See, e.g., Exec.

Order No. 11269, at §3(a), reprinted as amended in 22 U.S.C.

§ 286b note; 22 U.S.C. §§262h, 262k(b), 286a(d)(3).

* The U.S. representatives are eligible, in the discretion of the

Secretary of the Treasury, to receive employee benefits: “ Notwith­

standing the provisions of any other law, [U.S. representatives at

international financial organizations] shall, if they are citizens of

the United States, in the discretion of the Secretary of the Treasury,

each be eligible on the basis of such service and the total compensa­

tion received therefor, for all employee benefits afforded employees

in the civil service of the United States.” 22 U.S.C. §276c-2; see

also OPM Opinion, at 3 n.2 (Alternate USED eligible, in the discre­

tion of the Secretary, for SES retirement benefits and health, life,

and disability coverage).

* Section 276c-2 further provides: “ The Treasury Department

shall serve as the employing office fo r collecting, accounting for,

and depositing in the Civil Service Retirement and Disability Fund,

Employees Life Insurance Fund, and Employees Health Benefits

Fund, all retirement and health insurance benefits payments made

by these employees, and shall make any necessary agency contribu­

tions from funds appropriated to the Department of the Treasury.”

22 U.S.C. § 276c-2 (emphasis added).

* Treasury provides ethics advice to the U.S. representatives,

since the U.S. representatives do not have an internal source for

such advice, and the U.S. representatives are directed to file disclo­

sure forms and generally to comport themselves as if covered by

the ethics rules. Nevertheless, the Treasury Department does not

perform these functions as a result of any determination that it is

legally required to take this role, and Treasury seriously doubts that

it has ever been asked to provide a § 208(b) waiver to any USED

or Alternate USED.

8 Except for various of the statutory references, this information was provided to us by the Department of the

Treasury

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Opinions o f the Office o f Legal Counsel in Volume 24

* The salaries of the U.S. representatives are set and paid by the

IMF. See 22 U.S.C. §286a(d)(l) ( “ No person shall be entitled to

receive any salary or other compensation from the United States

for services as a Governor, executive director, councillor, alternate,

or associate.” ). Federal law limits the salaries that IMF may pay

the U.S. representatives, capping them at the rate of a level IV of

the Executive Schedule for the USED and a level V for the Alter­

nate USED. Id. § 286a(d)(2). See also Foreign Operations, Export

Financing, and Related Agencies Appropriations Act, 1999, Pub.

L. No. 105-277, §534, 112 Stat. 2681, 2681-181 (1998) (annual

appropriations rider prohibiting payment of appropriate funds to an

international financial institution if statutory pay prohibitions are

violated).

* IMF is similarly responsible for the salaries of the staff and

other expenses of the office of the U.S. representatives.

* The office of the U.S. representatives is typically staffed by four

to six additional people. The secretaries who work in the office

are employed by the IMF. The office also typically includes an

advisor and two or three assistants who are usually from Treasury.

These individuals are transferred to the IMF under 5 U.S.C. § 3582

(1994 & Supp. IV 1998). Upon being transferred to the IMF, these

individuals are separated from Treasury and are no longer Treasury

employees. They are not carried on Treasury’s books and are not

covered by the conflict-of-interest rules or standards of conduct

applicable to Treasury employees. The only elements of employ­

ment that they retain are re-employment rights and the right to

count their years of service at the IMF toward retirement eligi­

bility.9

* In a few instances, Treasury employees have also been detailed

to the office of the U.S. representatives under 5 U.S.C. §3343

(1994) when there was a pressing need for additional assistance.

These details are rare and have generally only been for short

periods of time.

* The IMF receives an annual lump-sum contribution from the

United States. These contributions flow through Treasury, but

9 See also OPM Opin. at 4 (distinguishing staff transferred from Treasury to assist the U S representatives from

the representatives because the staff are “ without any direct accountability to the United States” and “ are separated

from their United States employment for the penod o f their international service, and by statute, under prescnbed

conditions, are given reemployment rights to their former positions” ).

70

Applicability o f the Federal Vacancies Reform A ct to Vacancies at the International M onetary Fund

and the World Bank

Treasury does not exercise any discretion over the payment or how

the funds will be used by the IMF.

* Treasury does not consider the U.S. representatives to the IMF

to be part of Treasury for purposes of FOIA. More specifically,

Treasury indicated that it does not ask the U.S. representatives for

documents in responding to FOIA requests addressed to Treasury

if, e.g., the request concerns questions about the international finan­

cial organizations. As a matter of interbranch cooperation, Treasury

does provide information about the IMF in response to inquiries

from Congress and the General Accounting Office.

* The U.S. representatives are not treated as part of the Treasury

Department in the Department’s organizational charts and wire dia­

grams.

71